Legal Profession Conduct Commissioner v Mancini - [2018] SASCFC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LEGAL PROFESSION CONDUCT COMMISSIONER v MANCINI
[2018] SASCFC 29
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Parker)
2 May 2018
PROFESSIONS AND TRADES - LAWYERS - COMPLAINTS AND DISCIPLINE - DISCIPLINARY PROCEEDINGS - SOUTH AUSTRALIA - PROCEEDINGS IN TRIBUNALS
Appeal by Legal Profession Conduct Commissioner against findings by Legal Practitioners Disciplinary Tribunal that practitioner not guilty of professional misconduct but guilty of unsatisfactory professional conduct.
In February 2015 the practitioner sent certified commitment certificates to the Legal Services Commission claiming payment for a pretrial conference and guilty pleas and counsel fees in respect of his client KC. He had not in fact attended at any hearing of the matter and had not attended a pretrial conference or the hearing at which KC pleaded guilty and was sentenced. The practitioner was charged with one count of making false representations (count 1) and one count of claiming fees to which he knew or should reasonably have known he was not entitled (count 6). His defence was that he had done the work necessary for each court appearance including providing advice to KC and communicating with the court including making written submissions on sentence.
On 22 January 2015 the practitioner attended at the Magistrates Court in relation to charges against his clients SG and BJ. The practitioner had been told two days earlier that the prosecution would withdraw the charges. The charges were dismissed upon the prosecution tendering no evidence. The practitioner caused to be sent emails to the Legal Services Commission requesting funding for each matter. He did not disclose that the charges were about to be dismissed.
The Commissioner alleged that by each email the practitioner made a false representation that the matter was still pending (counts 2 and 4) and in respect of BJ that the practitioner claimed fees to which he was not entitled (count 7). The practitioner’s defence was that that he believed that the Commission from time to time exercised a discretion to grant retrospective funding.
On 23 January 2015 the Commission wrote to the practitioner authorising him to represent SG in the District Court on a plea of guilty. On 29 January the practitioner wrote to the Commission enclosing a certified commitment certificate and case finalisation form. The commitment certificate did not state that the matter had been finalised in the Magistrates’ Court or by way of withdrawal as opposed to a guilty plea. The case finalisation form showed in handwriting the Court in which finalised as “AMC” and finalisation as “withdrawn or nolle to all charges”. It showed the date of finalisation as 24 January. The Commissioner alleged that the practitioner made false representations by the commitment certificate that he had attended at the District Court to finalise the matter and by the case finalisation form that the matter had been finalised on 24 January 2015 (count 3) and claimed fees to which he was not entitled (count 6). The practitioner’s defence was that he believed that on occasion the Commission would allow payment at the District Court rate for a plea in the Magistrates Court on a major indictable offence and that the erroneous date of finalisation in the case finalisation form was a simple mistake.
On 2 March 2015 the Legal Services Commission wrote to the practitioner authorising him to represent HR on a guilty plea. On the morning of 10 March 2015 the practitioner sent a facsimile to the Commission reiterating a previous request for funding for trial. At the commencement of trial the practitioner negotiated a resolution of the matter by way of guilty plea. On 17 March the Commission wrote to the practitioner saying that legal aid had been extended for a trial. On 20 March the practitioner wrote to the Commission saying that the matter resolved on the day of trial and attaching a commitment certificate claiming legal costs for a trial. The Commissioner alleged that the practitioner by the commitment certificate made a false representation that the matter was a defended matter (as opposed to a defended matter not proceeding at trial) (count 5) and claimed fees to which he was not entitled (count 9). The practitioner’s defence was that he believed that he was entitled to make the claims for the amounts he did because of the nature of the matter, its complexities and the extent of the brief.
The Tribunal made a global finding that it was not satisfied that the practitioner acted dishonestly, accepting the practitioner’s evidence about his state of mind and that the practitioner was not guilty of professional misconduct. The Tribunal then proceeded to consider the individual counts and concluded that in respect of each count the practitioner was guilty of unsatisfactory professional conduct.
Held by the Court:
1. The Tribunal misapprehended the relationship between unsatisfactory professional conduct and professional misconduct before making findings about the practitioner’s conduct; failed to consider the issue of dishonesty (or state of mind) in respect of each individual count; and conflated consideration of counts alleging false representations with counts alleging claiming of fees to which the practitioner was not entitled (at [52-64]).
2. These errors vitiated the Tribunal’s findings (at [65]).
3. On the evidence before the Tribunal the Commissioner had established that the practitioner made knowingly false representations to the Commission in respect of KC’s matter (count 1), SG’s matter (count 2) and BJ’s matter (count 4). The Tribunal ought to have found the practitioner guilty of unprofessional conduct on these counts (at [69] and [75]).
4. It is not possible to determine on appeal what findings should have been made on the remaining counts (at [82], [84] and [87]).
5. Appeal allowed. Findings of the Tribunal set aside. Findings of guilty of unprofessional conduct substituted on counts 1, 2 and 4. Remaining counts remitted to a differently constituted Tribunal for fresh hearing and determination (at [88]).
Legal Practitioners Act 1981 (SA) s 5, s 68, s 69, s 82; Legal Services Commission of South Australia Act 1977 (SA) s 22; Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA), referred to.
Council of the Law Society of New South Wales v Webb [2013] NSWCA 423, considered.

LEGAL PROFESSION CONDUCT COMMISSIONER v MANCINI
[2018] SASCFC 29
Full Court: Kelly, Blue and Parker JJ
THE COURT:

The practitioner, George Mancini, was charged by the appellant, the Legal Profession Conduct Commissioner, under s 82(2) of the Legal Practitioners Act 1981 (SA) (“the Act”) with five counts of making a false and misleading representation to the Legal Services Commission of South Australia (“the Commission”) on different dates between January and March 2015. He was also charged with four counts of claiming or attempting to claim fees from the Commission to which he knew or should reasonably have known he was not entitled.
After a hearing, the Legal Practitioners Disciplinary Tribunal found the practitioner not guilty of professional misconduct but guilty of unsatisfactory professional conduct within the meaning of the Act.[1]
[1] As explained below, the Tribunal found the practitioner not guilty of “unprofessional conduct” under the Act as in force before July 2014 and “professional misconduct” under the Act as in force since July 2014. The Tribunal found the practitioner guilty of “unsatisfactory conduct” under the Act as in force before July 2014 and “unsatisfactory professional conduct” under the Act as in force since July 2014. The whole of conduct the subject of the charges post-dated July 2014 and should have been determined under the Act as in force since July 2014. However the arguments on appeal do not turn on this error by the Tribunal.
Issues on appeal
The Commissioner appeals against the Tribunal’s decision on the basis that the Tribunal should have found that the practitioner was guilty on each count of the more serious charge of professional misconduct within the meaning of the Act.
Specifically, the Commissioner contends that the Tribunal erred in finding that the practitioner’s conduct in certifying as accurate and submitting a number of commitment certificates to the Commission which were inaccurate and misleading did not comprise professional misconduct and also that the Tribunal fell into error in taking into account when assessing the practitioner’s conduct his belief that it was an acceptable practice to claim from the Commission fees for work he had not done.
The Commissioner contends that the Tribunal erred in failing to find that at the very least the practitioner’s conduct had been reckless. The Commissioner contends that the Tribunal erred in failing to consider that at the time of the conduct alleged in 2015 the practitioner was practising under the supervision of a senior practitioner by order of the Full Court made in April 2014 as a direct consequence of findings of guilt in relation to similar conduct.
The Commissioner contends that the reasoning of the Tribunal in accepting the practitioner’s evidence as honest took only a generic approach to the charges with the consequence that its reasons do not adequately disclose on which facts it ultimately based its conclusion that the conduct of the practitioner was only “unsatisfactory professional conduct”.
Background
Disciplinary proceedings have previously been brought against the practitioner. Those proceedings are summarised in the reasons for judgment of this Court in Mancini v Legal Practitioners Conduct Board.[2]
[2] [2014] SASCFC 31.
In April 2013 the Tribunal found the practitioner guilty of unprofessional conduct by making false and misleading statements to an expert psychologist retained by him and which the practitioner admitted. The Tribunal suspended his entitlement to hold a practising certificate for two months.
In April 2014 this Court allowed the practitioner’s appeal against the suspension of his practising certificate. This Court ordered that it be a condition of the practitioner’s entitlement to practise the profession of the law that he be under supervision for three years by a legal practitioner approved by the Legal Practitioners Conduct Board. Mr Ward was appointed as the practitioner’s supervisor for this purpose. The practitioner was under supervision at the time of the conduct which was the subject of the charges relevant to this appeal.
In July 2014 the Commission introduced a new regime under which a practitioner was required to be a member of the relevant panel to be eligible to work under a grant of legal aid. The Criminal Law Panels comprised a General Panel and a Complex Panel. The practitioner’s original application for inclusion on these panels was unsuccessful. His appeal within the Commission against that rejection was successful in December 2014. On 31 December 2014 the Commission and the practitioner entered into a General Panel Agreement in standard terms. In addition, ten specific conditions were imposed that applied only to the practitioner. Those conditions included that the practitioner would observe his obligations under section 22(1)(a) of the Legal Services Commission of South Australia Act 1977 (SA) to disclose to the Commission any information relating to the provision of legal assistance to assisted persons that the Commission may require (condition 2.6 and 7) and that the practitioner would provide sufficient information relating to the merits of an application for a grant of legal aid, or extension of a grant, to support certification of merit (condition 10).
The charges
Each charge contained detailed factual particulars of the conduct alleged to constitute the charge. The nine counts particularised on the charge sheet can conveniently be grouped as follows.
KC’s matter
Counts 1 and 6 related to a client of the practitioner with the initials KC. KC was charged in the Murray Bridge Magistrates Court on complaint with driving under disqualification and two more minor traffic offences committed in December 2012, and on information with aggravated assault, criminal damage and a more minor offence committed in August 2013.
On 18 September 2013 the Commission wrote to the practitioner informing him that legal aid was granted for the assault, criminal damage and drive whilst disqualified matters from 18 September 2013 for pleas of guilty and enclosing a commitment certificate for a fee of up to $250 for solicitor fees and $250 for counsel fees.
The Commission had a criminal law cost scale for work undertaken pursuant to Commission approval. Item 2 was “Guilty plea – instructions and all preparation” and item 3 was “Guilty plea – counsel”. There were items for defended matters. One of the items for defended matters, which required specific Commission authorisation in advance, was item 11 “pre-trial conference – all preparation and attendance”.
The matters were next listed for hearing in the Murray Bridge Magistrates Court on 21 October 2013. On that date the practitioner sent a facsimile to the Magistrates Court saying that he could not attend at court and, while KC would otherwise plead guilty, he disputed one charge and hence requested that the matter be listed for a pre-trial conference. KC attended at court and the matters were adjourned to a pre-trial conference on 18 November 2013.
On 18 November 2013 the practitioner sent a facsimile to the Magistrates Court saying that he intended to write to the prosecution about one charge and requesting an adjournment of the pre-trial conference. The court record shows that KC attended at court unrepresented that day. The information was adjourned to a pre-trial conference on 17 December 2013. The complaint (which included the drive whilst under disqualification charge) was adjourned to a pre-trial conference on 21 January 2014.
On 2 December 2013 the practitioner wrote to the Commission reporting that the matter was set for a pre-trial conference on 21 January 2014, saying that there was an issue on the drive disqualified charge whether KC was driving the vehicle (which pertained to the complaint matter) and requesting funding for the pre-trial conference. On 13 December 2013 the Commission issued to the practitioner a commitment certificate for a fee of $137 for pre-trial conference.
On 17 December 2013 the practitioner sent a further facsimile to the Magistrates Court saying that the information matter was listed for that morning and that KC could not attend. The facsimile requested an adjournment to 16 January 2013 (sic). The matter was adjourned to a pre-trial conference on 21 January 2014 with the complaint matter.
On 21 January 2014 the practitioner sent a further facsimile to the Magistrates Court saying that he could not attend at court on that day. The facsimile said that KC would attend and plead guilty to all counts except the assault charge which the prosecutor would withdraw. The practitioner made brief sentencing submissions in the facsimile. That day KC attended at court. The assault charge was withdrawn. KC entered guilty pleas to the other counts. The Magistrate imposed penalties by way of a fine and a good behaviour bond.
On 4 February 2015 the practitioner sent two certified commitment certificates and a covering letter to the Commission. One commitment certificate sought payment from the Commission for “pre-trial conference”; the other for “guilty plea” and “counsel fees”. Each commitment certificate contained a certification signed and dated by the practitioner that “this claim is correct and accurately reflects services undertaken”.
The Commissioner alleged that the practitioner had not attended a pre-trial conference nor the hearing when the guilty pleas were entered. It was alleged that the practitioner by the commitment certificates made false and misleading representations that he had attended at the Magistrates Court for a pre-trial conference and the guilty pleas (count 1) and claimed or attempted to claim fees from the Commission to which he knew or should reasonably have known he was not entitled (count 6).
On 11 February 2015 the Commission obtained a copy of the court record and ascertained that the practitioner had not attended at a pre-trial conference on guilty plea and decided not to pay the amounts claimed therefor. On the same date the Commission wrote to the practitioner’s supervisor saying among other things that the practitioner had inappropriately claimed payment when he never attended at court for a hearing of the matter. On 1 May 2015 the practitioner wrote to the Commission admitting that he had not attended at court but contending that he was nevertheless entitled to payment because he had secured a withdrawal of the assault charge and made written submissions as to penalty.
In his evidence, the practitioner admitted that he had not attended at court on either occasion. He said that he believed that he was entitled to be paid by the Commission because he had done the work necessary for each court appearance. Counsel for the practitioner pointed to evidence given by Ms Brebner of the Commission that the Commission did not have a written policy that required a practitioner to be physically present in court for a pre-trial conference or a guilty plea. It should be noted that Ms Brebner also said that the Commission always requires a practitioner to be present to assist the client and the court (even though in special circumstances the appearance might be by audio or video link).
SG’s matter
Counts 2, 3, and 7 related to a client of the practitioner with the initials SG. SG’s matter was finalised on 22 January 2015 at approximately 12.30 pm in the Adelaide Magistrate’s Court by the prosecution tendering no evidence. The practitioner had been informed by the prosecution two days previously that the charges would be withdrawn.
On 22 January 2015, while waiting for the matter to be called on and dismissed, the practitioner instructed his secretary to send an email in his name to the Commission requesting funding for the matter. In the email the practitioner said:
Herewith legal aid application, supporting documents and prosecution information. My client has been charged with sexual exploitation of child under the prescribed age. I request funding for this matter. Thank you.
The email was sent by the practitioner’s secretary at 1.30 pm and attached a copy of the information charging a major indictable offence being one count of persistent sexual exploitation of a child.
It was alleged that by sending the email the practitioner made a false and misleading representation that the matter was still pending (count 2). The practitioner’s defence relied on his belief that he had done the necessary work to justify the claim and that the Commission from time to time exercised a discretion to grant retrospective legal aid funding. However the practitioner accepted that he had not sought, or put forward circumstances to justify, retrospective legal aid funding and that he should have explained the history of the matter fully.
On 23 January 2015 the Commission wrote to the practitioner saying that aid had been granted from 23 January 2015 authorising him to represent SG in the District Court on a plea of guilty. It enclosed a commitment certificate for a fee of up to $714 for guilty plea and $384 for counsel fees. These fees were applicable to a matter in the District Court and were substantially higher than the fees applicable to a matter in the Magistrates Court ($262 and $262 respectively).

The practitioner wrote to the Commission enclosing the certified commitment certificate dated 29 January 2015 and a case finalisation form. The letter enclosing those documents was incorrectly dated 20 January 2015. The practitioner did not disclose in the commitment certificate that the matter had been finalised in the Magistrates Court on 22 January 2015 or that it had been finalised by withdrawal as opposed to a guilty plea. In the case finalisation form, the practitioner showed in handwriting as the court in which finalised “AMC” and ticked the finalised stage as “withdrawn or nolle to all charges”. The case finalisation form showed the date matter finalised as “24/1/15”. As previously noted, the matter had in fact been finalised on 22 January 2015 before the application for legal aid was submitted.
On 3 February 2015 the Commission obtained a copy of the court record and ascertained that the matter had been finalised before aid was approved and cancelled the commitment certificate.
The Commissioner alleged that the practitioner by the commitment certificate made a false and misleading representation that he had attended at the District Court to finalise the matter and by the case finalisation form that the matter had been finalised on 24 January 2015 (count 3). The Commissioner further alleged that by the commitment certificate the practitioner claimed fees from the Commission to which he knew or should reasonably have known he was not entitled (count 6).
The practitioner gave evidence that he believed that he was entitled to claim for the fees which he did. He said that he had previously made such claims and the Commission had on occasion allowed them although he acknowledged that it had also refused them. Counsel for the practitioner pointed to Ms Brebner’s evidence that where funding was sought for a major indictable offence charged in the Magistrates Court on a committal, as this matter was, the Commission’s practice was to approve funding for a District Court guilty plea (before the matter arrived in that Court) because that is the court in which the matter will end up in the ordinary course. However Ms Brebner also gave evidence that, if the matter is finalised by means of a guilty plea in the Magistrates Court, it is paid at the Magistrates Court rate and not the District Court rate because the level of payment is governed by the court in which the matter is completed. Ms Brebner produced five letters that were sent to the practitioner in 2011 relating to claims by him that were adjusted by the Commission because pleas were ultimately entered in the Magistrates Court.
In relation to the case finalisation form the practitioner gave evidence that he was simply confused about the date and made an error. The practitioner also gave evidence that the letter dated 20 January 2015 enclosing the commitment certificate was incorrectly dated because a template letter was used and the error was not picked up before it was sent.
BJ’s matter
Counts 4 and 8 concerned a client of the practitioner with the initials BJ. BJ’s matter was finalised on 22 January 2015 at approximately 12.30 pm in the Adelaide Magistrate’s Court by the prosecution tendering no evidence (at the same time as SG’s matter). The Director of Public Prosecutions had informed the practitioner two days previously that it was not proceeding with the charges.
On 22 January 2015, while waiting for the matter to be called on and dismissed, the practitioner instructed his secretary to send an email in his name to the Commission requesting funding for the matter. In the email the practitioner said:
Herewith legal aid application, supporting documents and prosecution information. My client has been charged with sexual exploitation of child under the prescribed age. I request funding for this matter. Thank you.
The email was sent by the practitioner’s secretary at 1.35 pm and attached a copy of the information charging a major indictable offence being one count of persistent sexual exploitation of a child. It also attached the application in which BJ said that he wanted to plead not guilty and included a certification by the practitioner that “I am of the opinion that this application has legal merit and/or is otherwise deserving of aid”.
On 3 February 2015 the Commission obtained a copy of the court record and ascertained that the matter had been finalised before aid was approved and cancelled the commitment certificate.
The Commissioner alleged that the practitioner by the email sent on 22 January 2015 made a false and misleading representation that the matter was still pending (count 4) and that the practitioner claimed fees to which he knew or ought to have known he was not entitled (count 8). The practitioner gave evidence that he had given the forms to his secretary when he was in court and when the matter was still pending. However the practitioner in his evidence accepted that he had made a request for retrospective legal aid. His defence was that he believed that the LSC did from time to time exercise a discretion to grant such funding. However, he accepted that he should have been more fulsome with the Commission when the legal aid application was submitted.
HR’s matter
Counts 5 and 9 concerned a client of the practitioner with initials HR. HR was charged with two counts of assault in the Magistrates Court. HR’s matter was set for trial in the Magistrates Court on 10 and 11 March 2015.
On 19 February 2015 the practitioner sent a facsimile to the Commission requesting a transfer of legal aid, stating that the matter was set for a two day trial in March and requesting funding for the trial. He did not disclose that the trial was listed to commence on 10 March 2015. On 2 March 2015 the Commission wrote to the practitioner authorising him to represent the client on a plea of guilty on the basis of a maximum fee of $262 for solicitor’s work and $262 for counsel. The letter stated that the information provided did not demonstrate merit in running a trial.
On 10 March 2015 at 9.12 am the practitioner sent a facsimile to the Commission stating that only one count was now in dispute and it involved a dispute by way of oath against oath. He requested funding for trial. He did not disclose that the trial was listed to commence on that morning.
On 17 March 2015 the Commission wrote to the practitioner saying that legal aid had been extended from 17 March 2015 for a trial. The letter attached a commitment certificate showing a maximum fee of $299 for “trial” and $858 for “extension for trial – counsel”. The letter stated that these amounts were in addition to the total of $524 previously approved.
In the meantime, the matter had resolved on the morning of 10 March 2015 before the trial commenced by way of a guilty plea. On 20 March 2015 the practitioner wrote to the Commission in which he said:
I confirm that this matter resolved on the day of trial. The client pleaded guilty to both counts. That was necessary and appropriate in the circumstances.
The practitioner attached the commitment certificate certified by the practitioner claiming legal costs of $299 and $858 (excluding GST).
The Commission scale contained one set of rates for “defended matters” and a different set of rates for “defended matters not proceeding on the morning at trial”. The latter rates were $561 solicitor fees and $424 for counsel fees.
The Commissioner alleged that the practitioner by the commitment certificate made a false and misleading representation that the matter was a defended matter (count 5) and by the commitment certificate claimed fees from the Commission to which he knew or should reasonably have known he was not entitled (count 9).
In a letter dated 1 May 2015 the practitioner said that he believed that he was entitled to make the claims for the amounts he did because of the nature of the matter, its complexities and the extent of the brief. The letter further said that he believed that, if there were any disallowance of the fee by the Commission, this would be communicated to him and he would be entitled to make further representations on any disallowance.
Tribunal’s findings and reasons
The Tribunal’s findings appear at [71] onwards in its reasons. The Tribunal began by making a global finding that it was not satisfied that the practitioner acted dishonestly and proceeded on the basis that this global finding was an answer to the Commissioner’s case of professional misconduct on each count. The Tribunal said:
The Tribunal is not satisfied that what was involved here was dishonesty on the part of the Practitioner in the terms discussed above. The Tribunal accepts the Practitioner’s evidence that he honestly believed for the reasons given in his evidence that he was entitled to lodge the claims for fees that he did. …
…
The Practitioner gave evidence that he honestly believed, based on his previous experience regarding extant practices and procedures of the Commission in applying its guidelines to such claims, the exercise of the discretion by the Commission when considering such claims in respect of the previous matters, and his conversation with a practitioner referred to in [42], that he was justified in making the claims that he did. The Tribunal accepts the Practitioner’s evidence that he honestly believed for the reasons noted that he was entitled to lodge the claims for fees that he did.
The Tribunal is not satisfied that the Practitioner at any of the relevant times deliberately acted in a dishonest manner in the terms alleged in respect of the claims for fees the subject of the counts.
The Tribunal accepts the Practitioner’s evidence about his state of mind. The Tribunal is not satisfied that the Practitioner had the requisite state of mind at the relevant times in the terms discussed in the authorities … for the allegation of recklessness to be made out.
The Tribunal is satisfied, however, that the Practitioner’s conduct subject of counts 2 to 5 and 7 to 9 constitutes unsatisfactory professional conduct within the meaning of s 68 of the Act, and in respect of counts 1 and 6 unsatisfactory conduct within the meaning of s 5 of the Act prior to the amendments effected by the Amending Act. Regarding the former, the Tribunal has found the comments of NSW Court of Appeal in Council of the Law Society of NSW v Webb (“Webb”) helpful. In Webb … The question on appeal from a decision of the NSW Administrative Decisions Tribunal was whether the Tribunal had erred in concluding that there had been a “consistent failure to reach or maintain a reasonable standard of competence and diligence”, thereby characterising it as professional misconduct. The NSW Court of Appeal considered the meaning of the word “consistent” in the context of s 497 of the NSW Act (the equivalent of s 69 of the Act):
The reference to a “consistent failure” is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a “consistent failure” in the sense in which that expression is used in this definition.
The scope and purpose of the section suggests that for a failure to be “consistent” and fall within s 69(a) there needs to be repeated or persistent failure resulting from the legal practitioner making the same mistakes of principle, or acting in the same inappropriate way, in a variety of situations. It is the persistent occurrence of the same or similar failures to reach or maintain a reasonable standard of competence and diligence on separate occasions which gives them the quality of being “consistent”. The Tribunal is not satisfied given the state of the evidence including regarding the Practitioner’s state of mind (discussed herein) that such is the case here.
[footnotes omitted]
It was only after making this global finding that the Tribunal considered any factual findings or the facts in relation to any of the individual counts. Immediately after the last paragraph extracted above, the Tribunal said:
The Tribunal is, however, satisfied on the evidence that the conduct of the Practitioner in respect of documents submitted by him to the Commission the subject of the charge in counts 2 to 5, and 7 to 9 constitutes unsatisfactory professional conduct within the meaning of s 68 of the Act on the basis that the said conduct “falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner”: s 68. In respect of counts 1 and 6 the Tribunal is satisfied on the evidence that the conduct of the Practitioner in respect of documents submitted by him to the Commission the subject of the charge constitutes unsatisfactory conduct within the meaning of s 5 of the Act (prior to the amendments effected by the Amending Act) on the basis that the said conduct involves a failure to meet the standard of conduct observed by competent legal practitioners of good repute.
The Tribunal finds that the Commission’s guidelines and scale of costs and in some respects (relevant to this matter) unclear and that the Commission in certain circumstances (again relevant to this matter) retains a discretion as to whether certain claims for payments ought to be made, even if the guidelines and the scale of costs appear to suggest otherwise. Nevertheless, the Tribunal is of the view, that where it is intended by a practitioner that the Commission exercise a discretion on whether a claim for payment should be made or not, it is important that the documents submitted to the Commission in respect of such claims disclose sufficient detail so that it is readily apparent to the Commission from the face of such documents, first, that it is a claim seeking the exercise of a discretion, and second, the basis upon which the exercise of the discretion is sought.
Claims for fees by practitioners in relation to legally aided matters involve the payment of public monies by the Commission – the need for disclosure on the part of practitioners of matters relevant to such claims including the terms noted above is extremely important. The Commission no doubt relies on the honesty and care on the part of practitioners in what they represent and certify in documents submitted to the Commission in respect of such claims.
The Tribunal finds the Practitioner’s conduct (subject of counts 2 to 5 and 7 to 9) fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner, and his conduct (subject of counts 1 and 6) involved a failure to meet the standard of conduct observed by competent legal practitioners of good repute. In spite of the favourable findings made by this Tribunal about the evidence, in the Tribunal’s view, the Practitioner, could and should have done better when lodging the relevant claims. More specifically the Tribunal notes the following in respect of each of the counts.
i)Counts 1 to 6 - it should have been made more readily apparent from the face of the documents (the subject of these counts) submitted to the Commission that the Practitioner was claiming fees for attendances on the court in respect of two occasions on the basis that he attended the Magistrates Court through making written representations on behalf of the client, without physically attending the court on either date.
ii)Counts 2, 3, and 7 - it should have been made more readily apparent from the face of the documents (the subject of these counts) submitted to the Commission that as the Practitioner was making a retrospective claim for fees (meaning the claim for legal aid was being made in respect of a matter that had already been finalised in the Magistrates Court), it called for an exercise of discretion on the part of the Commission as to whether the claim should be allowed.
iii)Counts 4 and 8 - it should have been made more readily apparent from the face of the documents (the subject of these counts) submitted to the Commission that as the Practitioner was making a retrospective claim for fees (meaning the claim for legal aid was being made in respect of a matter that had already been finalised in the Magistrates Court), it called for an exercise of discretion on the part of the Commission as to whether the claim should be allowed.
iv)Counts 5 and 9 - it should have been made more readily apparent from the face of the documents (the subject of these counts) submitted to the Commission that the Practitioner was claiming fees for “a trial” and “extension of trial” for a matter which resolved on the morning of the first day of the trial by entry of pleas of guilty, and this called for an exercise of discretion on the part of the Commission as to whether the claim should be allowed.
It is common ground on appeal that the Tribunal erroneously found the conduct the subjects of counts 1 and 6 to be unsatisfactory conduct within the meaning of s 5 of the Act prior to the amendments effected by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA). The Tribunal should instead have applied the definition of unsatisfactory professional conduct and professional misconduct under s 68 and s 69 of the Act. The Tribunal overlooked the fact that counts 1 and 6 were amended at the outset of the hearing by consent to allege that the conduct in each of those counts took place in 2015 and not 2014.
The Tribunal concluded by finding the practitioner guilty of unsatisfactory professional conduct in respect of counts 2 to 5 and 7 to 9 and unsatisfactory conduct within the meaning of the old Act in respect of counts 1 and 6.
The approach by the Tribunal
The Tribunal made several fundamental interrelated errors of approach which led it to make erroneous conclusions and vitiated its ultimate findings.
First the Tribunal misapprehended the relationship between unsatisfactory professional conduct and professional misconduct. The relationship between unsatisfactory professional conduct and professional misconduct is apparent from their respective definitions in sections 68 and 69 of the Act:
68—Unsatisfactory professional conduct
In this Act—
unsatisfactory professional conduct includes conduct of a legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.
69—Professional misconduct
In this Act—
professional misconduct includes—
(a) unsatisfactory professional conduct of a legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of a legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law.
Leaving aside the second limb of the definition of professional misconduct and the fact that both definitions are expressed to be inclusive rather than exhaustive, professional misconduct is an aggravated form of unsatisfactory professional conduct. The aggravation comprises the failure to achieve a reasonable standard of competence and diligence being either “substantial” or “consistent”. The Tribunal in the fifth and sixth paragraphs extracted at [48] above referred only to the “consistent” limb and not the “substantial” limb of the definition.
In the paragraph extracted by the Tribunal from the judgment in Council of the Law Society of New South Wales v Webb,[3] Meagher JA (with whom Leeming JA and Simpson J agreed) had said immediately before the passage extracted by the Tribunal:[4]
The distinction made by that definition is between conduct which involves a “substantial” failure to reach or maintain the required standard and conduct which involves a “consistent” failure to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence and thereby warrant the description “substantial”.
[3] [2013] NSWCA 423.
[4] Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 at [22].

It was incumbent on the Tribunal to consider not only whether the practitioner’s failures were “consistent” but also whether they were or any one of them was “substantial”. This the Tribunal failed to do.
Secondly, by first making a global finding that dishonesty had not been proved against the practitioner and that the practitioner was not guilty of professional misconduct before making findings about the practitioner’s conduct, the Tribunal approached the questions in the wrong order. It was first necessary for the Tribunal to make findings about the practitioner’s conduct before attempting to make findings about his state of mind in relation to that conduct. While it is possible to make a global finding as to the credit of a witness provided that appropriate considerations are taken into account, it is not possible to make a global finding of honesty or dishonesty before making findings as to the specific conduct in which a practitioner has engaged. It was necessary that findings on the factual circumstances in respect of each count be made before the Tribunal could consider whether the proven conduct amounted to unsatisfactory professional conduct or professional misconduct.
Thirdly, the Tribunal made a global finding that the practitioner did not act dishonestly rather than considering dishonesty in respect of each individual count. A global finding of a lack of proven dishonesty was largely meaningless. The Tribunal could only make a finding about the practitioner’s state of mind in the context of each individual count.
Fourthly, the Tribunal conflated the counts alleging false representations with the counts alleging claiming of fees to which the practitioner was not entitled. The evidence and considerations relating to the practitioner’s state of mind in relation to the alleged false representations were very different to those relating to his state of mind in relation to the alleged claiming of fees to which he was not entitled. The Tribunal conflated the question of the practitioner’s honest belief that he was entitled to charge the fees he claimed (the subject of counts 6 to 9) with the question which arose on counts 1 to 5 whether he knew at the time he made the statements that they were false and misleading.
The Tribunal also conflated the counts alleging false representations with each other and the counts alleging claiming of fees to which he was not entitled with each other. Again, different alleged false representations and different alleged claims for fees involved different evidence and raised different considerations. The Tribunal also conflated all of the counts when making its critical finding of a lack of proven dishonesty and lack of “consistent” failure to achieve the relevant standard.
The manner in which these interrelated errors of approach led the Tribunal into error in its conclusions is exemplified when the counts are considered individually, which is addressed below.
The Tribunal made no reference to the practitioner’s disciplinary history, the fact that at the time of the alleged conduct the subject of the charges he was under supervision pursuant to an order made by this Court or the fact that the Commission had imposed special conditions on his admission to its General and Complex Criminal Case Panels which related to the adequacy of his provision of information to the Commission. It is evident that those special conditions were imposed due to concerns by the Commission as to the adequacy of the provision of information by the practitioner in the past.
The Commissioner’s complaint that the Tribunal erred in failing to consider these matters when assessing the practitioner’s conduct must be upheld. While a failure to mention a particular matter is not necessarily indicative of an error, here the practitioner’s recent history and the context of his dealings with the Commission were important matters for the Tribunal to consider when assessing his conduct and his state of mind at all relevant times.
The Tribunal did refer more generally to the practitioner's history including the fact that he was admitted to practice in 1978, since then had practised extensively in criminal law related matters including legally aided matters generally and is an experienced criminal lawyer who appears to have represented his clients effectively in criminal law related matters. The Tribunal did not explain why a practitioner with 40 years’ experience of dealing with legally aided matters could fail to have been aware of the relevant guidelines and policies of the Commission in relation to making claims. Nor did the Tribunal refer to evidence presented at the hearing that the practitioner had previously been informed in a number of other matters that he was not entitled to claim for matters finalised in the Magistrates Court save and except on the Magistrates Court scale. In respect of at least five other matters, the practitioner had previously been informed in letters from the Commission that as those matters were finalised in the Magistrates Court he was only entitled to claim the guilty plea counsel rate on the Magistrates Court scale and not at the District Court rate. The Tribunal did not address that evidence or reconcile it with the practitioner’s evidence that he was unaware of the Commission policies and guidelines at the relevant time. The Tribunal addressed only that part of the practitioner’s history which went to his credit and not those matters which went to the heart of the issues of knowledge and recklessness.
The Tribunal’s fundamental errors of approach and failure to make specific findings of fact in respect of each of the charged counts, together with its failure to address the evidence presented to it which went to the heart of the practitioner's knowledge at the relevant times, caused the process to miscarry fundamentally and vitiates the Tribunal’s ultimate conclusions.
The alleged false representations in respect of KC’s matter (count 1)
The practitioner submitted to the Commission on 4 February 2015 commitment certificates claiming $137 for a pre-trial conference and $500 for solicitor and counsel fees for a guilty plea. The certificates were sent under cover of a letter in which the practitioner said that the matter was finalised with the prosecution withdrawing the assault charge and guilty pleas being entered for KC’s other matters.
These statements by the practitioner comprised unequivocal representations to the Commission that the practitioner had attended at a pre-trial conference and at a hearing at which submissions were made in respect of the guilty plea. The true position was that the practitioner had not attended any hearing. There is no doubt that the practitioner made false and misleading representations to the Commission. The existence and objective falsity of those representations was not disputed by the practitioner at the hearing before the Tribunal. We observe nevertheless that the Tribunal understated the extent of this representation (and of the other representations which it found comprised unsatisfactory professional conduct) by adopting the formula that the true position “should have been made more readily apparent”.
The making of the representations gave rise to a strong inference that the practitioner knew when he signed the commitment certificates and sent the covering letter that he was thereby representing that he had attended at the pre-trial conference and guilty plea hearing. The practitioner did not give evidence rebutting this inference. While he gave evidence that he believed that he was entitled to be paid for the work he did, he did not give evidence that he believed that he did not represent by the commitment certificates that he had attended at a pre-trial conference and at the guilty plea. In the circumstances, the only finding open to the Tribunal was that the practitioner knew that by his certification in respect of the commitment certificates and his covering letter he was representing that he had attended at the two hearings.
The nature of the practitioner’s practice gave rise to a strong inference that he knew when he signed the commitment certificates and sent the covering letter that he had not in fact attended at the pre-trial conference or guilty plea hearing and hence that the representations were false. The practitioner did not give evidence rebutting this inference. On the contrary, he attempted to justify his conduct by reference to the work he actually did instead of attending at court. In the circumstances, the only finding open to the Tribunal was that the practitioner knew that his representation that he had attended the two hearings was false.
If the practitioner believed that he should be paid for the work he did in negotiating outside a pre-trial conference the withdrawal of the drive while disqualified charge and sending written submissions on penalty, he should have told the Commission what work he had done and claimed payment notwithstanding that he had not attended at court on either occasion. By submitting the commitment certificate and claiming payment for item 11 – “pre‑trial conference - all preparation and attendance” – and item 3 – “guilty plea counsel”, he deprived the Commission of the right to decide whether it would make payment by reference to the work actually performed.
The making of a knowingly false representation involves a substantial failure to achieve a reasonable standard of competence and diligence and amounts to professional misconduct. If the practitioner believed that the Commission would still have paid the fees claimed if he had disclosed the true position, that does not detract from the fact that he made a knowingly false representation or the conclusion that he engaged in professional misconduct, albeit such a belief is relevant to the gravity, and the appropriate disciplinary orders to be made as a result, of that professional misconduct.
The alleged false representations in respect of SG’s and BJ’s matters (counts 2 and 4)
The practitioner in each of SG’s and BJ’s matters caused an email to be sent to the Commission by his secretary on 22 January 2015 requesting funding for each matter. Each email said:
Herewith legal aid application, supporting documents and prosecution information. My client has been charged with sexual exploitation of child under the prescribed age. I request funding for this matter. Thank you.
These statements comprised unequivocal representations to the Commission that the charges against SG and BJ were extant and the practitioner was seeking funding for future legal work. The true position was that in each matter the practitioner had been informed two days previously that the prosecution were going to tender no evidence and when the practitioner instructed his secretary to send the emails he knew that they would have been finalised by withdrawal by the prosecution before the Commission considered the application. There is no doubt that the practitioner made false and misleading representations to the Commission. The existence and objective falsity of those representations was not disputed by the practitioner at the hearing before the Tribunal.
The making of the representations gave rise to a strong inference that the practitioner knew when he instructed his secretary to send the emails that he was thereby representing that the matters were extant and he was seeking funding for future legal work. He did not give evidence rebutting this inference. On the contrary, he attempted to justify his conduct by reference to his belief that the Commission might exercise a discretion to pay the relevant fee notwithstanding that the application for funding was retrospective. In the circumstances, the only finding open to the Tribunal was that the practitioner knew that by his emails he was representing that matters were extant and he was seeking funding for future legal work.
The fact that the prosecution had agreed two days previously to tender no evidence gave rise to an irresistible inference that the practitioner knew when he sent the emails that the matters had been finalised or at least would have been finalised by the time the Commission considered the applications. The practitioner did not give evidence rebutting this inference. In the circumstances, the only finding open to the Tribunal was that the practitioner knew that his representations that matters were extant was false.
If the practitioner believed that he should have been paid for the work he did notwithstanding that it was undertaken prior to authorisation by the Commission, he should have told the Commission the true position and sought retrospective funding based on exceptional circumstances. By sending the emails in the terms that he did, he deprived the Commission of the right to decide whether it would authorise retrospective funding.
For the same reasons as in respect of count 1, if the practitioner believed that the Commission would still have paid the fees claimed if he had disclosed the true position, that does not detract from the fact that he made a knowingly false representation or the conclusion that he engaged in professional misconduct.
The alleged false representations in respect of SG’s and HR’s matters (counts 3 and 5)
By count 3 the Commissioner alleged that on 29 January 2015 the practitioner made two false representations to the Commission. The first alleged misrepresentation was that he had attended at the District Court to finalise the matter when in fact it was finalised in the Magistrates Court. The second alleged misrepresentation was that the matter was finalised on 24 January 2015 when in fact it was finalised on 22 January 2015 before the practitioner submitted the application for legal aid.
In relation to the first alleged misrepresentation, the certified commitment certificate considered in isolation represented that the matter was finalised in the District Court given the circumstances of the legal aid assignment. It is true that on the case finalisation form the practitioner wrote in handwriting as the court in which finalised “AMC”. By finding the practitioner guilty of unsatisfactory conduct in respect of count 3, the Tribunal must have found that the handwritten reference on the case finalisation form was not sufficient to abrogate the representation made by the commitment certificate. There is no challenge by the practitioner on the appeal to the Tribunal’s finding of unsatisfactory conduct in respect of count 3.
On the one hand, the Tribunal’s finding that dishonesty had not been proved against the practitioner is vitiated given the fundamental errors of approach by the Tribunal referred to above. Moreover, if the Tribunal had found, as it should have, that the practitioner knowingly made false representations the subject of counts 1, 2 and 4 this would have had potential credit consequences when assessing the practitioner’s evidence that he did not knowingly represent that the matter was finalised in the District Court. On the other hand, the practitioner gave evidence before the Tribunal that he expected that the Commission would understand from the case finalisation form that the matter had been finalised in the Magistrates Court. Here the practitioner was referring to the reference to finalisation in the “AMC” in the case finalisation form. Given that this Court has not heard or seen the practitioner give evidence, it is not in a position to make a finding concerning this question.
In relation to the second alleged misrepresentation, the practitioner gave evidence that his reference to the matter being finalised on 24 January 2015 was simply erroneous. Again, on the one hand the Tribunal’s finding that dishonesty had not been proved against the practitioner is vitiated for the same reasons as in respect of the first alleged misrepresentation. On the other hand, this Court not having heard or seen the practitioner give evidence is not in a position to make a finding concerning this question.
Count 3 must be remitted to the Tribunal for fresh hearing and determination.
By count 5 the Commissioner alleged that on 20 March 2015 the practitioner falsely represented to the Commission by the commitment certificate that the matter was a defended matter (as opposed to a defended matter not proceeding on the morning of the trial). The certified commitment certificate considered in isolation made this representation given the circumstances of the legal aid assignment. It is true that in his covering letter the practitioner said that “this matter resolved on the day of trial”. By finding the practitioner guilty of unsatisfactory conduct in respect of count 5, the Tribunal must have found that this was not sufficient to abrogate the representation made by the commitment certificate. Further, the Tribunal must have found that the representation was consistent with the matter resolving at the end of the day rather than the beginning. There is no challenge by the practitioner on the appeal to the Tribunal’s finding of unsatisfactory conduct in respect of count 5.
Again, on the one hand the Tribunal’s finding that dishonesty had not been proved against the practitioner is vitiated for the same reasons as in respect of count 3. On the other hand, this Court not having heard or seen the practitioner give evidence is not in a position to make a finding concerning this question. Count 5 must be remitted to the Tribunal for fresh hearing and determination.
The alleged claims for fees to which the practitioner was not entitled (counts 6 to 9)
By counts 6 to 9 the Commissioner alleged that the practitioner claimed fees from the Commission in respect of KC, SG, BJ and HR respectively to which he knew or should reasonably have known he was not entitled.
By finding that the practitioner’s conduct the subject of these counts amounted to unsatisfactory professional conduct, the Tribunal must have found that the practitioner should reasonably have known that he was not entitled to the fees claimed in these matters. However the Tribunal did not find that the practitioner knew that he was not entitled to the fees claimed in these matters. Even on that premise, it is not clear why the Tribunal considered that the practitioner’s failure to achieve the requisite standard was not “consistent” within the meaning of the definition of professional misconduct provided in the Act. However, this question need not be further considered because the Tribunal’s findings are vitiated for the reasons given above.
In relation to the question whether the practitioner claimed fees to which he knew he was not entitled, on the one hand the Tribunal’s finding of lack of dishonesty is vitiated for the same reasons as in respect of counts 3 and 5. On the other hand, this Court not having heard or seen the practitioner give evidence is not in a position to make findings concerning these questions. Counts 6 to 9 must be remitted to the Tribunal for fresh hearing and determination.
Conclusion
We allow the appeal. We set aside the findings of the Tribunal. In lieu of the findings on counts 1, 2 and 4, we substitute findings that the practitioner was guilty of professional misconduct. We remit the remaining counts to a differently constituted Tribunal for fresh hearing and determination.